Hla Hart and Modern Legal Positivism

HLA Hart and Modern Legal Positivism

H.L.A. Hart is one of the important names in the history of legal theories. In our class reading, Hart talked about past strict positivists and changed legal positivist theory for modern thinking and experience. Hart also talked about Austin and Bentham, who were two important figures in Utilitarianism. Hart agreed with some of their thought but disagreed with other aspects of their thought. Because of his examination, and sometimes disagreement and changes, of Positivism and Utilitarianism, H.L.A. Hart is famous for a new way of thinking about both schools of thought.

The Key Concept from the Text and an Example

The key concept from the text is a more modern way of looking at law and morality because Hart is a legal positivist but he is a modern legal positivist. Hart believes that the "point of intersection between law and morals or that what is and what ought to be are somehow indissolubly fused or inseparable though the positivists denied it." For example, Hart says that people are not giant land crabs with shells that cannot be penetrated and who can somehow get their food from the air and not be hurt by each other. Until people become like those giant land crabs, there must be laws that are against violence and that set minimum property rights. Hart believes that those laws "overlap" with basic moral principles against murder, violence and theft and that all legal systems "coincide" with morality at such vital points.

Hart wrote several important works, including "Positivism and the Separation of Law and Morals" for the Harvard Law Review. In "Positivism and the Separation of Law and Morals," Hart looked at old and new Positivism and the Utilitarian beliefs of Austin and Bentham. An earlier legal positivist believed that it is only a coincidence if legal rights and moral rights are connected. Legal rights do not depend on morality or "natural law" at all for a legal positivist. One example that Hart uses is "the core and the penumbra." He uses this example to show that for a positivist, law is related to the meanings of words and not to moral law or natural law. In Hart's example, a "core" is the thing that a law is meant to cover but a "penumbra" covers things that are not meant to be covered by that law. If a law says that vehicles cannot be in a park, a judge who goes by legal positivism would look up the meaning of "vehicle" and stick to that definition. The judge would not try to figure out the "penumbra" covered by that law and try to use the law for a bicycle, roller skates or toy cars because those are not defined as "vehicles" in the statute. Hart disagrees with past strict positivists because he believes that modern thinkers must see that there is a "point of intersection between law and morals or that what is and what ought to be are somehow indissolubly fused or inseparable though the positivists denied it."

b. The Point-of-View of Both Austin and Bentham and Examples

Austin and Bentham were both Utilitarians. They believed that there is not really a connection between the law that is and the law that ought to be. In other words, Austin and Bentham believed that it is only a coincidence if legal rights and moral rights are connected. Because they were Utilitarians, Austin and Bentham believed in a social philosophy of liberalism in law and government, reform, and control of power because even reformers might corrupt the law. They also believed that: a rule can violate morality but still be a law; a rule can obey morality but not be a rule of law. An example that Hart gave is the rights of a master over his slaves: even though the master's rights violate morality, his rights are still a rule of law; also, someone could violate the law of a master's rights by illegally freeing a slave but that violation would obey moral law. Finally, they believed that: a study of the vocabulary of law is vital to understanding law; and that law is a command.

Austin said that the coincidence between the law that is and the law that ought to be happens so often that people get confused and believe that law and morality are connected. Austin also said that there is human law and there is divine law and that if a human law conflicts with divine law, then the human law is not really a law and does not need to be obeyed. Austin believed that divine law was shown in utilitarian principles, which were about liberalism, reform and control of power. Using the example of the master's rights over his slaves, the rule of law that gives the master rights over his slaves conflicts with divine law (that we know by Utilitarian principles) and therefore it is not really a law and does not have to be obeyed. Bentham said basically the same thing with two large differences: Bentham used "utility" instead of God or the divine law; and Bentham believed that even a supreme legislative power can be legally restrained by a Constitution.

Hart seems to admire the simplicity of Austin and Bentham. For example, Hart mentions that Bentham claims that the issue in question is not whether slaves can reason but simply whether they suffer. In this way, Bentham does not fall into the trap of talking about the issue of whether a slave is naturally meant to serve other people. Even so, Hart criticizes Austin and Bentham because they are so severe about separating the law that is from the law that ought to be. Hart says that sometimes there is an intersection between laws and morals. Hart also criticizes their belief that law is essentially a command from a sovereign that is habitually obeyed because they can command obedience but do not need to obey. Hart says that the law does not work that way: legislators do not hold office long enough to be habitually obeyed sovereigns; and the laws passed by the legislature must still obey fundamental rules.

3. Conclusion

H.L.A. Hart is a famous legal thinker who examined Positivism and Utilitarianism. Hart is noted for thoughts that modernized the thinking of positivists and specifically utilitarians. The key concept of "Positivism and the Separation of Law and Morals" is that sometimes law intersects with morality. For example, until people become like giant land crabs with shells that cannot be penetrated and who can get their food from the air and not be harmed by others, there must be laws against violence and setting basic property rights. Hart believes that those laws "intersect" with morality and every legal system has laws like that. Hart believes that the old positivists, who saw law that is completely separate from law that ought to be, were mistaken.